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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 09-427 



SPACE COOPERATION 



Agreement Between the 
UNITED STATES OF AMERICA 
and ITALY 



Effected by Exchange of Notes at 
Washington February 19 and April 27, 2009 



with 



Memorandum of Understanding 




NOTE BY THE DEPARTMENT OF STATE 



Pursuant to Public Law 89 — 497, approved July 8, 1966 
(80 Stat. 271; 1 U.S.C. 113)— 

". . .the Treaties and Other International Acts Series issued 
under the authority of the Secretary of State shall be competent 
evidence ... of the treaties, international agreements other than 
treaties, and proclamations by the President of such treaties and 
international agreements other than treaties, as the case may be, 
therein contained, in all the courts of law and equity and of maritime 
jurisdiction, and in all the tribunals and public offices of the 
United States, and of the several States, without any further proof 
or authentication thereof." 



ITALY 



Space Cooperation 

Agreement effected by exchange of notes 
at Washington February 19 and 
April 27, 2009; 

Entered into force April 27, 2009. 

With memorandum of understanding. 



February 19, 2009 



Excellency: 

I have the honor to refer to the recent discussions between representatives of 
the Government of the United States of America and the Government of the Italian 
Republic concerning the terms and conditions whereby the National Aeronautics 
and Space Administration (NASA) and the Italian Space Agency (ASI) will 
undertake cooperation on the European Space Agency-led Planck mission. 

On behalf of the Government of the United States of America, I propose that 
cooperation between the two governments on this project shall be in accordance 
with the terms and conditions set forth in the enclosed Memorandum of 
Understanding, signed January 26 and February 6, 2009, between NASA and ASI. 

If the foregoing proposal is acceptable to the Government of the Italian 
Republic, I further propose that this note, including the enclosed Memorandum of 

His Excellency 

Giovanni Castellaneta, 

Ambassador of Italy. 



DIPLOMATIC NOTE 



-2- 



Understanding, and your Excellency's affirmative reply shall constitute an 
agreement between the two governments which shall enter into force on the date of 
your Excellency's reply and shall remain in force until the termination of the 
Memorandum of Understanding, in accordance with the terms thereof. 

Accept, Excellency, the renewed assurances of my highest consideration. 




Enclosure: As stated. 



MEMORANDUM OF UNDERSTANDING 



BETWEEN THE 



NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 
OF THE UNITED STATES OF AMERICA 



AND THE 



ITALIAN SPACE AGENCY 



CONCERNING THE 



EUROPEAN SPACE AGENCY PLANCK MISSION 



Preamble 



The National Aeronautics and Space Administration of the United States of America 
(hereinafter referred to as "NASA") and 



The Italian Space Agency (hereinafter referred to as "ASI"), 
Collectively hereinafter referred to as "the Parties": 



CONSIDERING that ASI was selected by the European Space Agency (ESA) to participate 
in the effort to provide a Low-Frequency Instrument (LFI) for the Planck mission; 

CONSIDERING that NASA has shown interest in joining with AS! as a participant in the 
development and operation of the LFI for the ESA Planck mission; 

RECALLING the interim agreement of March 29, 2001, between NASA and ASI, addressing 
an interest to pursue activities together on the Planck mission; 



HAVE AGREED as follows: 



Article 1 - Scope 



1 . 1 This Memorandum of Understanding (MOU) defines the responsibilities, ways, and means, 
as well as the terms and conditions, by which the cooperation between the Parties shall be 
conducted for their combined role in the Planck mission. 



Article 2 - The Planck Mission 

2.1 ESA's Planck mission is intended to image the temperature and polarization anisotropics of 
Cosmic Microwave Background (CMB) radiation w ith an unprecedented combination of 
sensitivity, angular resolution, and frequency coverage. Planck is designed to make precise 
determinations of the fundamental parameters which define the cosmological constant, the 
Hubble constant, and the neutrino content of the universe. 

2.2 The mission is planned for launch no earlier than October 3 1 , 2008, aboard an Ariane V 
launch vehicle. It will be co-manifested with the ESA Herschel mission. Planck will 
operate in a nominal 1.2 Lissajous orbit for a nominal mission lifetime of two years. 

Article 3 - Scientific I n\ estimations 

3.1 Planck is expected to significantly increase our understanding of the universe during its 
planned two-year nominal mission. 

3.2 The primary Planck science instruments are the LFI and the High-Frequency Instrument 
(HFI). 



Article 4 - Programmatic Responsibilities of ASI 

ASI, supported by the Istituto Nazionale di Astro Fisica (INAF), shall use reasonable efforts to 
fulfill the responsibilities below : 

4. 1 Design, develop, and verify the LF1 for integration with the HFI. 

4.2 Oversee and be responsible for the technical contributions of all the European 
Co- investigators (Co-Is) of LFI. 

4.3 Deliver the LFI to ESA and support integration into the ESA-provided Planck spacecraft. 

4.4 Represent the LFI to ESA and provide the required ESA reporting documents and 
reviews. 

4.5 Manage activities at the LFI Data Processing Center and provide hardware and software 
maintenance for the t enter. 

Article 5 - Programmatic Responsibilities of NASA 

NASA, supported by the Jet Propulsion Laboratory (JPL) and other U.S. organizations, shall use 
reasonable efforts to fulfill the responsibilities below: 

5.1 Support the participation of NASA-sponsored science team members in all phases of the 
mission, 

5.2 Provide the following data/components of a common, fully redundant hydrogen sorption 
cryocooler for the Planck instruments (both the LFI and the HFI): 

a. The test reports on the Elegant Breadboard (EBB) preflight cooler. 

b. A cryogenic qualification model piping assembly and cold end (a subsystem of the 
cryocooler). 

c. The flight model cooler, excluding electronics. 

d. The redundant flight model cooler, excluding electronics. 

5.3 Support LFI in operating the sorption cooler during integration and test activities, launch, 
commissioning, and mission operations. 

5 4 Provide data analysis support and software support to the LFI Data Processing Center. 

Article 6 - Rights in and Distribution of Scientific Data 

6. 1 Planck mission investigators will share Planck mission data in accordance with the 
Planck Science Management Plan (HSA/SPC/(2004)1 0) and, in particular, with chapter 
5.1.1 (Delivery Schedule of Scientific Data Products) and chapter 5.2 (Scientific Data 
Rights and Publication Data Policy). 



Article 7 - Program and Project Management 

This article describes general management and organizational responsibilities. Each Party is 
responsible for the management of its activities as identified in Articles 4 and 5 above. 

7.1 ESA has established a Planck Project Office at the European Science and Technology 
Research Center (ESTEC) in The Netherlands. The Project Office is headed by the ESA 
Planck Project Manager who, on behalf of the ESA Director of Science, is responsible 
for the overall management and implementation of the Planck mission. 

7.2 The Planck Project Office is responsible for the design, fabrication, and launch of the 
Planck mission, including its scientific instruments. It is also responsible for the flight 
operations of the Planck mission throughout all mission phases. 

7.3 The ASI Headquarters Observation of the Universe is responsible for the LFI hardware 
development and for overall programmatic and science management of the ASI- 
sponsored astrophysics activities. ASI has designated a Planck Program Manager and 
Planck Program Scientist to manage the ASI contributions to Planck. The Program 
Manager is also the principal point of contact for ASI in the performance of this MOU. 

7.4 NASA has named a Planck Program Executive within the Office of Space Science at 
NASA Headquarters who is responsible for NASA's overall participation in the Planck 
mission. This responsibility includes the implementation of policies and management 
oversight of the Planck-related activities funded by NASA to ensure accomplishment of 
the mission objectives. The Program Executive is also the principal point of contact for 
NASA in the performance of this MOU. 

7.5 NASA has also named a Planck Project Manager at JPL who is responsible for the 
implementation of all NASA contributions to this mission. 

Article 8 - Transfer of Goods and Technical Data 

The Parties are obligated to transfer only those technical data (including software) and goods 
necessary to fulfill their respective responsibilities under this MOU, in accordance with the 
following provisions, notwithstanding any other provision of this MOU: 

8.1 All activities of the Parties will be carried out in accordance with their national laws 
and regulations, including those relating to export control and the control of classified 
information. 

8.2 The transfer of technical data for the purpose of discharging the Parties' responsibilities 
with regard to interface, integration, and safety shall normally be made without 
restriction, except as provided in 8. 1 above. 



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,3 All transfers of goods and proprietary or export-controlled technical data are subject to 
the following provisions. In the event a Party or its Related Entity (e.g.; contractor, 
subcontractor, grantee, cooperating entity) finds it necessary to transfer goods or to 
transfer proprietary or export-controlled technical data, for which protection is to be 
maintained, such goods shall be specifically identified and such proprietary or export- 
controlled technical data shall be marked. The identification for goods and the marking 
on proprietary or export-controlled technical data will indicate that the goods and 
proprietary or export-controlled technical data shall be used by the receiving Party or 
Related Entities only for the purposes of fulfilling the receiving Party's or Related 
Entity's responsibilities under this MOU, and that the identified goods and marked 
proprietary technical data or marked export-controlled technical data shall not be 
disclosed or re transferred to any other entity without the prior written permission of the 
furnishing Party or its Related Entity. The receiving Party or Related Entity shall abide 
by the terms of the notice and protect any such identified goods and marked proprietary 
technical data or marked export-controlled technical data from unauthorized use and 
disclosure. The Parties to this MOU will cause their Related Entities to be bound by the 
provisions of this article related to use, disclosure, and retransfer of goods and marked 
technical data through contractual mechanisms or equivalent measures. 

.4 All goods exchanged in the performance of this MOU shall be used by the receiving 
Party or Related Entity exclusively for the purposes of this MOU. Upon completion of 
the activities under this MOU, the receiving Party or Related Entity shall return or, at the 
request of the furnishing Party or its Related Entity, otherwise dispose of all goods and 
marked proprietary technical data or marked export-controlled technical data provided 
under this MOU, as directed by the furnishing Party or Related Entity. 

Article 9 - Intellectual Property 

.1 For the purposes of this article, "Related Entity" includes but is not limited to 
contractors, subcontractors, grantees, or cooperating entities (or any lower tier 
contractor, subcontractor, grantee, or cooperating entities) of a Party. 

.2 a. Nothing in this MOU shall be construed as granting, either expressly or by 

implication, to the other Party any rights to, or interest in, any inventions or works of 
a Party or its Related Entities made prior to the entry into force of, or outside the 
scope of, this MOU, including any patents (or similar forms of protection in any 
country) corresponding to such inventions or any copyrights corresponding to such 
works. 

b. Any rights to, or interest in, any invention or work made in the performance of this 
MOU solely by one Party or any of its Related Entities, including any patents (or 
similar forms of protection in any country) corresponding to such invention or any 
copyright corresponding to such work, shall be owned by such Party or Related 
Entity. Allocation of rights to, or interest in, such invention or work between such 
Party and its Related Entities shall be determined by applicable laws, rules, 
regulations, and contractual obligations. 



c. It is not anticipated that there will be any joint inventions made in the performance of 
this MOU. Nevertheless, in the event that an invention is jointly made by the Parties 
in the performance of this MOU, the Parties shall, in good faith, consult and agree 
within 30 calendar days as to: a) the allocation of rights to, or interest in, such joint 
invention, including any patents (or similar forms of protection in any country) 
corresponding to such joint invention; b) the responsibilities, costs, and actions to be 
taken to establish and maintain patents (or similar forms of protection in any country) 
for each such joint invention; and c) the terms and conditions of any license or other 
rights to be exchanged between the Parties or granted by one Party to the other Party. 

d. For any work jointly authored by the Parties, should the Parties decide to register the 
copyright in such work, they shall, in good faith, consult and agree as to the 
responsibilities, costs, and actions to be taken to register copyright protection (in any 
country). 

e. Subject to the provisions of Articles 8 and 10, each Party shall have an irrevocable, 
royalty-free right to reproduce, prepare derivative works, distribute copies to the 
public, and perform publicly and display publicly, and authorize others to do so on its 
behalf, any copyrighted work resulting from activities undertaken in the performance 
of this MOU for its own purposes, regardless of whether the work was created solely 
by, or on behalf of, that Party or jointly with the other Party, and without consulting 
with or accounting to the other Party. 

Article 10 - Publication of Public Information and Results 

10. 1 The Parties retain the right to release public information regarding their own activities 
under this MOU. The Parties shall coordinate with each other in advance concerning 
releasing to the public any information that relates to the other Party's responsibilities 
or performance under this MOU. Full acknowledgement shall be made by both Parties 
of the role of the other Party in the Planck mission. 

10.2 The Parties shall make the final results obtained from the Planck mission available to 
the general scientific community in accordance with provisions of the Planck Science 
Management Plan (ESA/SPC/(2004)tO and, in particular, with chapter 5.2 (Scientific 
Data Rights and Publication Data Policy). 

10.3 The Parties acknowledge that the following data or information does not constitute 
public information and that such data or information shall not be included in any 
publication or presentation by a Party under this article without the other Party's prior 
written permission: 1) data furnished by the other Party in accordance with Article 8 of 
this MOU which is export-controlled, classified, or proprietary; or 2) information about 
an invention of the other Party before a patent application has been filed covering the 
same, or a decision not to file has been made. 



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Article 11 - Financial Arrangements 



11.1 Each Party will bear the costs of discharging its respective responsibilities, including 
travel and subsistence of personnel and transportation of all equipment and other items 
for which it is responsible. Further, it is understood that the ability of the Parties to 
carry out their obligations is subject to the availability of appropriated funds. Should 
either Party encounter budgetary problems that may affect the activities to be carried 
out under this MOU, the Party encountering the problems will notify and consult with 
the other Party as soon as possible to minimize the negative impact of such problems on 
the cooperation. 

Article 12 - Customs Clearance, Taxes, Immigration, and Ownership 

12. 1 In accordance with the laws and regulations governing the Parties, each Party shall 
facilitate free customs clearance and waiver of all applicable customs duties and taxes 
for equipment and related goods necessary for the implementation of this MOU. In the 
event that any customs duties or taxes of any kind are nonetheless levied on such 
equipment and related goods, such customs duties or taxes shall be borne by the Party 
of the country levying such customs duties or taxes. The Parties' obligation to facilitate 
duty-free entry and exit of equipment and related goods is fully reciprocal. 

12.2 Subject to applicable laws and regulations, each Party shall facilitate provision of the 
appropriate entry and residence documentation for the other Party's personnel who 
enter, exit, or reside within its territory to carry out the activities under this MOU. 

12.3 Equipment provided by ASI pursuant to this MOU will remain the property of ASI. 
Equipment provided by NASA pursuant to this MOU will remain the property of 
NASA. 

Article 13 - Exchange of Technical Personnel 

13.1 Each Party may temporarily locate a mutually agreed-upon number of its personnel at 
the other Party's respective facilities in the United States and Italy to participate in 
technical activities described in this MOU. Each Party shall provide workspace and 
necessary office equipment to accommodate the other Party's personnel that shall be 
temporarily located in the United States and Italy. Salary and all other personnel 
expenses, such as living and travel expenses, shall be borne by the employing Party of 
the technical representative(s) throughout the duration of their assignment. 
Arrangements for, and all conditions relating to, the personnel relationships shall be 
agreed to and jointly documented in writing between NASA and ASI. These personnel 
shall comply with the safety and security rules and regulations of the hosting Party. 

13.2 NASA and ASI shall provide, on occasion and as appropriate, for personnel to visit 
each Agency's facilities to participate in integration and testing and to observe, confer, 
and advise the other Party regarding aspects of design and development of compatible 
instrument interfaces, integration, and testing. 

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Article 14 - Liability 



14.1 The Parties agree that a comprehensive cross-waiver of liability among the Parties and 
their related entities will further participation in space exploration, use, and investment. 
The cross-waiver of liability shall be broadly construed to achieve this objective. The 
terms of the waiver are set out below. 

14.2 The following terms, as used in this article, are defined below: 

a. The term "Party" has the meaning specified in the Preamble; 

b. The term "related entity" means: 

(i) a contractor, subcontractor, or sponsored entity of a Party at any tier; 

(ii) a user or customer of a Party at any tier; 

(iii) a contractor or subcontractor of a user or customer or sponsored entity of a Party 
at any tier; or 

(iv) scientific investigators. 

The term "related entity" may also include another State or an agency or institution of 
another State, where such State, agency, or institution is an entity as described in (i) 
through (iv) above or is otherwise involved in the activities undertaken pursuant to this 
MOU. 

The terms "contractors" and "subcontractors" include suppliers of any kind. 

c. The term "damage" means: 

(i) bodily injury to, or other impairment of health of, or death of, any person; 

(ii) damage to, loss of, or loss of use of any property; 

(iii) loss of revenue or profits; or 

(iv) other direct, indirect, or consequential damage. 

d. The term "launch vehicle" means an object or any part thereof intended for launch, 
launched from Earth, or returning to Earth that carries payloads or persons, or both; 

e. The term "payload" means all property to be flown or used on or in a launch 
vehicle: and 

f. The term "Protected Space Operations" means all activities pursuant to this MOU, 
including launch vehicle activities and payload activities on Earth, in outer space, or in 
transit between Earth and outer space. "Protected Space Operations" begin at the 
signature of this MOU and end when all activities done in implementation of this MOU 
are completed. 

"Protected Space Operations" include, but are not limited to the following: 



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1 



(i) research, design, development, test, manufacture, assembly, integration, operation, 
or use of launch or transfer vehicles, payloads, or instruments, as well as related 
support equipment, facilities, and services; and 

(ii) all activities related to ground support, testing, training, simulation, or guidance and 
control equipment and related facilities or services. 

The term "Protected Space Operations" excludes activities on Earth that are conducted on 
return from space to develop further a payload's product or process for use other than for 
the joint activity in question. 

4.3. a. Each Party agrees to a cross-waiver of liability pursuant to which each Party waives all 
claims against any of the entities or persons listed in subparagraphs (i) through (iii) 
below based on damage arising out of Protected Space Operations. This cross-waiver 
shall apply only if the person, entity, or property causing the damage is involved in 
Protected Space Operations and the person, entity, or property damaged is damaged by 
virtue of its involvement in Protected Space Operations. This cross-waiver shall apply 
to any claims for damage, whatever the legal basis for such claims, against: 

(i) the other Party; 

(ii) a related entity of the other Party; or 

(iii) the employees of any of the entities identified in subparagraphs (i) 
and (ii) immediately above. 

b. In addition, each Party shall extend the cross-waiver of liability, as set forth in 
subparagraph 14.3.a above, to its own related entities by requiring them, by contract or 
otherwise, to agree to waive all claims against the entities or persons identified in 
subparagraphs 14.3.a (i) through 14. 3. a (iii) above. 

c. Notwithstanding the other provisions of this section, this cross-waiver of liability shall 
not be applicable to: 

(i) claims between a Party and its own related entity or between its own 
related entities; 

(ii) claims made by a natural person, his/her estate, survivors, or subrogees for bodily 
injury, other impairment of health, or death of such natural person, except where 
the subrogee is a Party to this MOU or has otherwise agreed to be bound by the 
terms of this cross-waiver. 

(iii) claims for damage caused by willful misconduct; 

(iv) intellectual property claims; 

(v) claims for damage resulting from a failure of a Party to extend the cross-waiver 
of liability, as set forth in subparagraph 14.3.b, or from a failure of a Party to 
ensure that their related entities extend the cross-waiver of liability, as set forth in 
subparagraph 14.3.b; or 

(vi) contract claims between the Parties based on the express contractual provisions. 



9 



d. Nothing in this article shall be construed to create the basis for a claim or suit where 
none would otherwise exist 

e. For avoidance of doubt, this cross-waiver of liability includes a cross-waiver of liability 
arising from the 1972 Convention on Internationa! Liability for Damage Caused by 
Space Objects where the person, entity, or property causing the damage is involved in 
Protected Space Operations and the person, entity, or property damaged is damaged by 
virtue of its involvement in Protected Space Operations. 

f. In the event of third-party claims for which the Parties may be liable, the Parties will 
consult promptly to determine an appropriate and equitable apportionment of any 
potential liability and on the defense of any such claims. 

Article 15 - Registration of Space Objects 

15.1 NASA and AS! acknowledge that ESA is entitled to register Planck as a space object in 
accordance with the 1975 Convention on Registration of Objects Launched into Outer 
Space (the Registration Convention). ESA shall retain jurisdiction and control over the 
space objects it registers. 

1 5.2 Registration pursuant to this article shall not affect the rights or obligations of either Party 
or its Government under the 1972 Convention on International Liability for Damage 
Caused by Space Objects. 

Article 16 - Mishap Investigation 

16. 1 In the case of a mishap or mission failure, the Parties agree to provide assistance to 
each other in the conduct of any investigation, bearing in mind, in particular, the 
provisions of Article 8 of this MOU. In the case of activities that might result in the 
death of or serious injury to persons, or substantial loss of or damage to property as a 
result of activities under this MOU, the Parties agree to establish a process for 
investigating any such mishap as part of their program/project implementation plans. 

Article 17 - Amendment 

17.1 This MOU may be amended or extended by written agreement of the Parties. 

Article 18 - Consultation and Settlement of Disputes 

18.1 The Parties' respective points of contact, identified in Article 7.3 and 7.4, shall consult 
promptly with each other on all issues involving interpretation or implementation of this 
MOU. These points of contact will attempt to resolve all issues arising from the 
implementation of this MOU. 

1 8.2 In the case of a question of interpretation or implementation of the terms of this MOU, 
such questions that cannot be resolved by the Parties' respective points of contact shall 



10 



be referred for joint resolution to the NASA Associate Administrator for Science 
Mission Directorate and to the ASI Director of the Observation of the Universe, or their 
designees; and if unresolved at this level, then to the NASA Administrator and the ASI 
President, or their designees, for joint resolution. 



1 9.1 This MOU shall enter into force upon signature by the Parties and the conclusion of an 
agreement to be effected by an exchange of diplomatic notes incorporating the terms 
and conditions of this MOU. This MOU shall remain in force until December 31, 2014, 
to permit completion of the Planck mission and data-analysis period. This MOU may be 
extended by mutual written agreement of the Parties, provided that the agreement effected 
by the exchange of notes remains in force. The interim agreement of March 29, 2001, 
shall terminate upon entry into force of this MOU . 

1 9.2 Either Parry may terminate this MOU at any time by giving the other Party at least six 
months written notice of its intent to terminate. Termination of this MOU shall not affect a 
Party's continuing obligations under Articles 6, Rights in and Distribution of Scientific 
Data; 8, Transfer of Goods and Technical Data; 9, Intellectual Property; 12, Customs 
Clearance, Taxes, Immigration, and Ownership; and 14, Liability, that shall continue to 
apply after the expiration or termination of this MOU. In the event of termination, the 
Parties shall endeavor to minimize the negative impacts of such termination on the other 
Party. 



Done in duplicate in the English language. 



Article 19 - Entry into Force and Termination 



For the National Aeronautics 
and Space Administration of 
the United States of America 







j 



1 



NOTE VERBALE 



The Embassy of Italy presents its compliments to the U.S. Department of State 
and has the honor to refer to its proposal concerning the terms and conditions whereby 
the National Aeronautics and Space Administration (NASA) and the Italian Space 
Agency (ASI) will undertake cooperation on the European Space Agency-led Planck 
mission. 

On behalf of the Government of the Italian Republic, the Embassy of Italy agrees 
that the U.S. Department of State's note, including the aforesaid Memorandum of 
Understanding and this note, shall constitute an agreement between the two governments 
which shall enter into force on the date of this note and shall remain in force until the 
termination of the Memorandum of Undemanding, in accordance with the terms thereof. 

The Embassy of Italy thanks the U.S. Department of State for its kind cooperation 



in this matter and avai 
consideration! 



s itself of this opportunity to renew the assurances of its highest 



April 27, 2009 



U.S. Department of State 
Washington, DC 20520